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Legal Writing Reminders

Commonly Interchanged in Parlance and Commonly Confused in Writing

By Josh Taylor

Welcome back to the #LegalWritingReminders series. This time, we focus on peculiar English terms that are constantly used interchangeably when we’re speaking, but that should be used more appropriately in our writing. We all know that we often speak very differently from how we write, and that’s OK! However, there are certain words with specific meanings that have acquired common (mis)usage in our writing. In both my law school advising and practice experience, these misuses are pervasive and persistent. I’ll focus on a few here, but I’m sure you can think of several more.

Since and Because

Most practicing lawyers and law students would be hard-pressed to find a piece without these terms confused — or more specifically, without “since” misused in place of “because.” This switch is so pervasive in everyday speech that many writers don’t know what the issue is. In fact, even the latest edition of the Chicago Manual of Style seems to have adopted the common speech usage (see Rule 5.201).

However, the difference between since and because is not inconsequential in legal writing. The simplest explanation is that “since” is a temporal term, and “because” is a causal term; “since” relays the passage of time, and “because” indicates something caused something else.

Incorrect:

  • Since you don’t know the lyrics, I’ll take the lead when we sing karaoke.
  • The defendant’s argument cannot proceed since he has missed the deadline to make that type of argument.

Note: The second incorrect example deals with time, but it is still a written misuse of “since.” While referencing time, the two parts of the sentence deal with causation. The first part hinges on the second part as its cause instead of the first part describing something that has happened in the time span described in the second part.

Correct:

  • I’ll take the lead when we sing karaoke because you don’t know the lyrics.
  • The defendant’s argument cannot proceed because he has missed the deadline to make that type of argument.

The correct use of “since” may be relatively rare, as it deals only in describing occurrences since a certain thing happened or since a specific date.

Correct:

  • Since July 7th, the plaintiff has not been in contact with the defendant in any capacity.
  • I haven’t been to a Chicago Cubs game since they won the World Series.
  • The police have been searching the suspect’s property since she told them where the drugs may be hidden.

Note: The last example is an incredibly gray area in the since/because saga. The sentence makes perfect sense using “since” correctly (temporal) and using it incorrectly where “because” would be appropriate (causal). However, the sentence changes meaning and urgency between the two readings. To avoid this in legal writing, try to make a rule of tying gray-area usages involving “since” like this one to a date.

More correct:

  • The police have been searching the suspect’s property since August 4, when she told them where the drugs may be hidden.

Which and That

A close second in the common misuse race is the confusion over “which” and “that.” Quite simply, “which” indicates that nonessential information follows, whereas “that” is used in a defining clause that contains information essential to the meaning of the sentence. You can throw away a“which” clause with very little consequence to the sentence’s meaning. That’s why a “which” clause is offset by commas.

Examples:

  • The blue house that has a red door is my best friend’s house.

In this example, the fact that the blue house has a red door is essential to differentiating the house from others and to conveying exactly which house is the friend’s house. Compare it with the following:

  • The blue house, which has a red door, is my best friend’s house.

Here, the “which” clause gives extra nonessential information to the listener or reader. Therefore, because brevity is cherished in legal writing, “which” should be used far less than “that.”  In other words, your legal writing should not include much nonessential information and thus not include “which” very often.

A Couple More!

Let’s take it home with these last fun examples.

While certainly not as pervasive as the previous two points of confusion, writers and speakers often confuse “home” and “hone.” “Hone” means to sharpen, and thus, someone “hones” a skill. However, “hone” has leaked into vernacular where “home” is the appropriate term. Correct usage dictates that a missile “homes” in on a target, meaning moving or aiming at a target with accuracy.

“Affect” and “effect” is a crowd favorite, so it’s worth reminding ourselves which is used when. “Affect” is almost always a verb — except when describing something having a certain “affect.” “Effect” is almost always a noun meaning a result. Thus, the effect of using these terms correctly will affect your writing for the better.

Catch Up With #LegalWritingReminders

“Honing Legal Writing Skills: Passive Voice and Parentheticals” by Josh Taylor

“Using Colons and Semicolons When Writing Briefs and Memos” by Josh Taylor

And be sure to read “Get to the Point!” by Teddy Snyder for quick tips on clear communications.

Illustration ©iStockPhoto.com

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Josh Taylor Josh Taylor

Josh Taylor is an attorney and the head of legal content strategy at the legal software company Smokeball. A former large firm litigator, Josh also serves on the staff of The John Marshall Law School’s Writing Resource Center. He speaks around the country on practice management and legal writing topics and curates the Smokeball blog, Law in Order.  Josh sits on the board of directors of the Community Activism Law Alliance. He holds a J.D. from Washington University in St. Louis, where he served as Thompson Coburn Research Fellow and a senior editor of the law review. Josh writes the legal writing reminders series for Attorney at Work.

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